Wolf v. Commonwealth

• Citation: 71 Va. 833
• Parties: WOLF v. THE COMMONWEALTH.
• Decision Date: 21 March 1878
• Court: Virginia Supreme Court

71 Va. 833

WOLF v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 21, 1878

1. An indictment charged that the accused " did feloniously and maliciously burn a certain barn and the property therein said barn and the property therein being the property of one H. H. Dulaney, and situated in the county aforesaid, which said barn and the property therein was then and there of the value of $1,500" --HELD: Sufficient under ch. 188, § 6, Code 1873.

2. A confession made by an accused person is admissible if it is not induced by any fear of punishment or hope of reward.

3. Such a confession is not inadmissible, because it was made to a person in authority, as to the examining justice, provided the confession was voluntarily made, and not elicited by any threat or promise of benefit.

This was an indictment against George Wolf for arson in the county court of Washington. There was a verdict finding the prisoner guilty and fixing the term of his imprisonment in the penitentiary at six years, and a judgment accordingly. The prisoner thereupon obtained a writ of error to the circuit court, where the judgment was affirmed; and he then applied to this court for a writ of error, which was allowed. The case is stated by Judge Christian in his opinion.

S M. Williams, for the prisoner.

The Attorney General, for the Commonwealth.

OPINION

CHRISTIAN J.

This is a writ of error to a judgment of the circuit court of Washington county, affirming a judgment of the county court of said county, convicting the prisoner of arson, and fixing the term of his imprisonment in the penitentiary at six years.

Several bills of exception were taken during the trial, but they raise only two points which this court is called upon to decide. For while there was a motion to set aside the verdict and grant a new trial, which was overruled, it does not appear that this judgment of the court was excepted to by the prisoner, nor is there any certificate of all the facts proved, or of all the evidence heard on the trial. The bills of exceptions state only so much of the evidence as was objected to as inadmissible.

The first question we have to determine is, whether the court erred in overruling the demurrer to the indictment.

The prisoner was indicted under the 6th section of chapter 188, Code 1873, which provides that " if a person maliciously burn any building, the burning whereof is not punishable under any other section of this chapter, he shall, if the building with the property therein be of the value of one hundred dollars or more, be confined in the penitentiary not less than three nor more than ten years, and if it be of less value, be so confined not less than one nor more than three years; or, in the discretion of the jury, in jail not more than one year, and be fined not exceeding five hundred dollars."

The indictment in this case charges that the prisoner " did feloniously and maliciously burn a certain barn and the property therein, said barn and the property therein being the property of one H. H. Dulaney, and situated in said county, which said barn, with the property therein, was then and there of the value of $1,500."

The ground alleged for the demurrer, as stated by the counsel for the petitioner, is, that " the offence is not charged with sufficient certainty, there being no allegation that there was actually any property in said barn, and the said property in said barn is not specified, or in any way stated so as to give the petitioner any notice of what he was called upon to answer."

The court is opinion that this objection is not well taken, and the court did not err in overruling the demurrer.

The indictment was framed nearly in the very language of the statute. The charge was that the accused did " maliciously burn a barn, which, with the property therein, was of the value of $1,500." The statute does not prescribe that the property in the barn shall be specified, nor its value, independent of that of the barn, shall be proved.

It only fixes the term of imprisonment according to the value of the building and property therein that is burned. All this is a matter of proof. If the building and property therein contained is of the value of one hundred dollars, then the punishment is by confinement in the penitentiary not less than three nor more than ten years; if both building and contents are of less value than one hundred dollars, then the punishment is for a term of not less than one nor more than three years, & c. The prisoner was not taken by surprise in any sense when he was called upon to answer the charge of having burned a barn of H. H. Dulaney, which barn, with the property contained therein, was of the value of $1,500. It was still his privilege to show, if he could, in order to reduce the punishment, that the value of the barn and contents was less than $100, and it was legitimate for the Commonwealth to show that it was of a greater value than $100. All this was matter of evidence, and did not affect the sufficiency or validity of the indictment.

The next question we have to determine is, whether the court erred in admitting the confessions of the prisoner offered by the Commonwealth in evidence. These confessions and the circumstances under which they were made are set out in two bills of exceptions, marked No. 2 and 3. In the first-named, as follows:

" The Commonwealth, to further maintain the issue on her part, asked the witness, H. H. Dulaney, if the defendant had told him anything about the burning of the barn above referred to, and the witness replied that he had stated in December after said burning, in the town of Goodson, _______; the defendant approached witness and told witness that he had been wanting to talk to witness and defendant's father, and the _______, thinking he wanted to talk to him about the barn-burning, said to defendant to be certain not to implicate himself or any one else that was not guilty, and that he (witness), without waiting to hear what defendant then had to say, procured one Hamlett, the sergeant of said

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